Prosecuting state Pardon and Parole Board is right call

Oklahoma County District Attorney David Prater's prosecution of the state Pardon and Parole Board for Open Meeting Act violations is drawing unwarranted criticism from the governor and The Oklahoman's editorial writers.
 
All five board members -- Currie Ballard, Richard L. Dugger, Marc Dreyer, Lynnell Harkins and David Moore -- pleaded not guilty on Thursday to multiple counts of violating the statute.
 
Prater alleges the board broke the law by discussing and voting on early parole consideration for inmates without listing such actions as agenda items. Instead, he says, the votes took place under the vague agenda item of "Docket Modifications," which included no other information.
 
Board members have said those votes only determined whether an inmate would be placed on the docket of a future meeting, at which time the inmate's name would appear on the board's website.
 
After charges were filed Wednesday, Gov. Mary Fallin said it "will have a chilling effect on individuals interested in public service."
 
"It is difficult to imagine men and women who are leaders in their communities wishing to serve in these positions — the vast majority of which draw no salary — if they are constantly in fear of being charged with a crime while making a good-faith effort to follow the law and the recommendations of their paid legal advisers," said Fallin.
 
(The Oklahoman echoed that concern in an editorial Friday.)
 
Fallin appointed Ballard, Dreyer and Moore to the board in 2011.
 
As a gubernatorial candidate in 2010, Fallin said she would expect her appointees to public bodies to abide by the state's Open Meeting Act. But her comments this week are an insult to the thousands of Oklahomans who serve on state and local boards and commissions without violating the statute.
 
The Open Meeting Act, as our Court of Civil Appeals noted in 1981, "is not obscure or incomprehensible." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
"On the contrary, anyone with ten minutes to spare can read the whole thing and understand virtually every word,” the court said. "Lack of familiarity is no excuse."
 
The Open Meeting Act certainly shouldn't have been incomprehensible to the five parole board members. Three -- Ballard, Dreyer and Harkins -- previously served on the board. And four have experience in enforcing the law: Dreyer is a former Drug Enforcement Administration agent; Dugger was a longtime district attorney in western Oklahoma; Harkins is an attorney and former special judge; and Moore is a former U.S. Secret Service agent.
 
All five also had no excuse because the state Attorney General's Office told them in April 2011 that agendas must give the public actual notice of the actions that might be taken in a meeting.
 
In an affidavit filed with the charges, Prater's chief investigator, Gary Eastridge, described what he heard in the audio recording of the hourlong open government training session that Gay Tudor, then an assistant attorney general, conducted with the board.
 
While Tudor was suggesting more details be added to agenda items, Eastridge said, "a female voice can be heard referencing 'docket modifications.""
 
Eastridge said Tudor made clear that board members could not take action if the possibility of that action was not listed on the agenda.
 
"The female (believed to be Mrs. Harkins) then specifically says 'that would be like docket modification item where we are going to bring someone forward.'"
 
Eastridge said Tudor emphasized during the session that the agenda is "a really big thing" and that agendas should include enough information for people to have an idea of what the board intended to do.
 
None of what Tudor told the board was new.
 
The Open Meeting Act says each agenda "shall identify all items of business to be transacted" by the public body at the meeting. (OKLA. STAT. tit. 25, § 311(B)(1))
 
Agendas should be worded in "plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the state Court of Civil Appeals has said. (Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶ 9)
 
The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems ... is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said. (Id. at ¶ 9)
 
Because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
 
The principle is "very simple," the state Court of Civil Appeals said that year. "When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State." (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶ 18)
 
Violating the Open Meeting Act is a misdemeanor. If convicted, the Pardon and Parole Board members could be punished by up to one year in the county jail and a $500 fine.
 
Those "light penalties for violating the [state's open records and meeting] laws only exacerbate the problem. Unless that changes, behavior isn't likely to either," The Oklahoman's editorial staff lamented in late August.
 
In the 2011 training session, Eastridge said, a board member asked Tudor if "intent" had to be proved for a criminal violation of the Open Meeting Act. She responded that willful violations don't require intent, only "'whether you knew or should have known and see now you know.'"
 
So the parole board members don't seem to fit Fallin's description of appointees making a good-faith effort to follow the Open Meeting Act and the recommendations of legal counsel.
 
Fallin also implied that political appointees serving on statewide boards and commissions fall into the same category as volunteers for charitable organizations. But the members of these government bodies make important decisions regarding state policies and spending.
 
The Pardon and Parole Board, for example, is "a vital part of the criminal justice system" whose mission "is to determine the best possible decision, through a case-by-case investigative process and to protect the public while recommending the supervised released of adult felons."
 
As Prater emphasized: "Public Safety is a core function of our government. As alleged, the Board was making crucial public safety decisions without giving the citizens of Oklahoma an opportunity to scrutinize its activities."
 
None of these statewide boards and commissions, however, is directly answerable to voters for their actions.
 
And if a Washington County district court judge is correct, civil lawsuits over Open Meeting violations may be filed only if the plaintiff was directly harmed.
 
Instead, the remedy for Oklahomans "who have no concern but that their government is working in the dark ... is a criminal prosecution for any willful violations," Judge Russell Vaclaw said in 2011.
 
Yet, Oklahomans have heard from district attorneys a long list of unfounded excuses for not prosecuting Open Meeting Act violations. When a district attorney chose not to file charges in 2011 because city council members hadn't intended to break the law, The Oklahoman complained:

Wouldn't we all love to get away with that excuse if we're pulled over for a traffic violation? Gee officer, I didn't mean to do it.

And in early August prior to Prater publicly criticizing the parole board's agendas, The Oklahoman complained about the lack of teeth in the state's open government laws, saying, "Prosecutors often are in no hurry to pursue what is a misdemeanor offense, nor do they like going after other public servants — the people who violate those laws."
 
But in an editorial Monday questioning Prater's decision to file charges against the parole board, The Oklahoman editorial asked, "What does it profit the state for members of this board to take a perp walk?"
 
The Oklahoman had answered its own question in a 2011 editorial titled "Ignorance of open meeting laws no excuse for public officials."

The laws regarding public meetings are black and white, and need to be adhered to. And those charged with enforcing the law need to do just that.
 
Why? Because laws regarding open meetings and open records allow the public to see how their tax money is being spent, how their elected officials are conducting their business. This is vitally important in our society.
 
When public officials try to avoid that light, they ought to be punished.

That remains true today.
 
Prosecuting the parole board is the right call.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
 

Pardon and Parole Board members say they didn't intend to violate state Open Meeting Act; But proving criminal intent not necessary for successful prosecution

Oklahoma Pardon and Parole Board members conceded Tuesday that their agendas could have been worded better, but they insisted that they never intended to violate the Open Meeting Act, The Oklahoman reported today.
 
"I understand the perception and the appearance, but there was no mal-intent to not be transparent," said Parole Board member David Moore of Edmond.
 
But proving criminal intent won't be necessary if Oklahoma County District Attorney David Prater choses to prosecute board members for agendas that failed to notify the public that state inmates would be considered for early release.
 
Criminal intent doesn't have to be proved because the vague agendas would be a crime by virtue of the Open Meeting Act. In other words, the board members either complied with the statute or didn't. ( See Hillary v. State, 1981 OK CR 78, ¶ 5)
 
Instead, prosecutors need only prove a willful failure to comply. (Id.)
 
"Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act," the state Supreme Court has said. (Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14)
 
Even a vote taken in "good faith" could be found to be a willful violation, the state Court of Civil Appeals said in 1981. (Matter of Order Declaring Annexation, 1981 OK CIV APP 57, ¶¶ 24-25)
 
"If willful is narrowly interpreted, if actions taken in violation of the Act could not be set aside unless done in bad faith, maliciously, obstinately, with a premeditated evil design and intent to do wrong, then the public would be left helpless to enforce the Act most of the time and public bodies could go merrily along, in good faith, ignoring the Act," the court explained. (Id. at ¶ 26) (emphasis added)
 
"While we discern no bad faith, malice, or wantonness, and while the officials may not have consciously broken the law, we are well-convinced that they knew or should have known the Act's requirements and blatantly or deliberately disregarded the law," the court concluded in that case. (Id. at ¶ 30)
 
All Pardon and Parole Board members are briefed on the Open Meeting Act, board member Currie Ballard told the Tulsa World last week.
 
Open Meeting Act violations are a misdemeanor punishable by up to one year in the county jail and a fine of up to $500.
 
Prater told The Oklahoman that his criminal investigation into whether the board willfully violated the Open Meeting Act is ongoing.
 
Last week, Prater issued a letter describing violations by the board as "willful, conscious and purposeful."
 
"The Oklahoma Pardon and Parole Board's violations in this matter are egregious, aggravated and a clear attempt to operate in secrecy, outside of public scrutiny,” Prater wrote.
 
Names of inmates proposed for early release were not placed on the board's agendas. Instead, board members brought up the names under the agenda item "docket modification."
 
The board's vague agendas essentially prevented the public from knowing that offenders would be considered for early release, Prater concluded.
 
"A member of the public who was interested in monitoring a specific inmate would not begin checking the parole dockets until the time drew near for the legal consideration of the inmate," Prater wrote.
 
"Outside of Board members, no person had the ability to determine what inmate would or could be the next fortunate soul to emerge from the darkness of the 'Docket Modification' portion of the Board's business with an undeserved opportunity to attain an early and illegal release.
 
"This result illustrates why compliance with the Open Meeting Act is vital to public awareness and governmental transparency. At the least, the public deserves the opportunity to observe a public board violate the the law in the light of day," he wrote.
 
The state Supreme Court has said agendas must "be worded in plain language, directly stating the purpose of the meeting . . . [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." (Andrews v. Indep. Sch. Dist. No. 29 of Cleveland County, 1987 OK 40, ¶ 7)
 
"To require otherwise would defeat the purpose of the Act," the unanimous court said. (Id.)
 
The five Pardon and Parole Board members told reporters Tuesday that they are willing to make whatever changes are needed so their actions are clear to the public.
 
"If there is some way we can tweak our process to be more transparent, then we certainly want to do that," Moore said. "We will fix what we need to fix to make sure there is no appearance of secrecy."
 
That willingness to change is admirable.
 
But "We're sorry. We won't do it again" shouldn't absolve the Pardon and Parole Board members of using agendas that kept the public in the dark about the early release of murderers and child molesters.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
 

DA accuses state Pardon and Parole Board of willfully violating Open Meeting Act to secretly release ineligible inmates

The Oklahoma Pardon and Parole Board willfully violated the Open Meeting Act with vague agendas that failed to notify the public that it would consider releasing inmates early, including some who were ineligible because they had not served mandatory sentences, Oklahoma County District Attorney David Prater announced Wednesday.
 
"I determined that the Board has no authority to pardon, commute or otherwise modify an inmate's sentence that was subject to a statutory restriction on early release. I also found that even the most diligent member of the public who had an interest in carefully monitoring a specific inmate, would not have known or anticipated the actions of your Board," Prater said in a letter to the board's executive director.
 
"The violations of the Open Meetings Act are willful, conscious and purposeful violations of the law," Prater wrote.
 
"Additionally, I find the Board's actions to be deliberate disregard of Oklahoma's Open Meeting Act," he wrote. "The Oklahoma Pardon and Parole Board's violations in this matter are egregious, aggravated and a clear attempt to operate in secrecy, outside of public scrutiny.”
 
Prater told The Oklahoman that he is considering filing charges against the board members.
 
Violating the statute is a misdemeanor punishable by up to one year in the county jail and up to a $500 fine.
 
In his letter, Prater also said the early release of inmates in violation of mandatory sentencing guidelines should be considered invalid as violations of the Open Meeting Act.
 
He called on the executive branch to take action to reverse the invalid decisions.
 
"Obviously, this will include taking inmates who have been released back into custody," he wrote.
 
Prater described a procedure during board meetings in which the members would vote to place inmates on a docket called a "Pre-Docket Investigation," or "PDI," for consideration of early release.
 
Prater said the Pre-Investigation Docket was "NEVER" mentioned on the 2.5 years of board meeting agendas that he reviewed.
 
"It was IMPOSSIBLE to determine at what point in the Pardon and Parole Board meetings the 'PDI' docket was being considered and voted on," Prater wrote.
 
He said a review of board meeting minutes revealed "an obscure, recurring Agenda item ... 'Docket Modifications - J.D. Daniels.'"
 
"Notably, no reference was made to a related docket or website containing a docket for consideration to be 'modified,'" Prater said. "The 'Docket Modification' Agenda items gives NO notice to the public of what business the Board will be conducting under this item."
 
The Pardon and Parole Board also didn't notify district attorneys of "unqualified inmates" being placed on the "PDI" docket for early parole consideration, Prater complained.
 
The board's vague agendas essentially prevented the public from knowing that inmates would be illegally considered for early release, Prater concluded.
 
"A member of the public who was interested in monitoring a specific inmate would not begin checking the parole dockets until the time drew near for the legal consideration of the inmate," Prater wrote. "Outside of Board members, no person had the ability to determine what inmate would or could be the next fortunate soul to emerge from the darkness of the 'Docket Modification' portion of the Board's business with an undeserved opportunity to attain an early and illegal release.
 
"This result illustrates why compliance with the Open Meeting Act is vital to public awareness and governmental transparency. At the least, the public deserves the opportunity to observe a public board violate the the law in the light of day," he wrote.
 
Prater also accused the board members of "gross partiality" for placing "certain inmates on the early parole docket without any apparent policy or procedure."
 
"Though the patent violations of the Open Meeting Act are condemnable, it is the apparent presence of patent partiality, operating in the darkness of Board meetings that is equally disturbing," he wrote. "This practice of partiality could not have survived had the Board complied with the Open Meeting Act."
 
Prater is clearly angry over the board's secrecy, perhaps in part because district attorneys were kept in the dark. Now, he knows how frustrated many Oklahomans become when public bodies heedlessly violate the Open Meeting Act.
 
But unlike the rest of us, Prater can do something to stop such violations. By prosecuting the Pardon and Parole Board, he can send a message to other public bodies that they must comply with the spirit and the letter of the Open Meeting Act.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

DHS commission still using vague agenda items for meetings despite DA's warning to be more specific

DHS' attorney said 10 months ago that agenda items for meetings of the statewide commission overseeing the agency would be more specific when major policy changes are contemplated.
 
So much for that assurance, according to a story in The Oklahoman today.
 
Last month, Commissioner Michael Peck presented a lengthy proposal to close a Pauls Valley residential center for developmentally disabled adults under an agenda item labeled "property committee report," the newspaper reported.
 
The head of a nonprofit concerned with the future of the Southern Oklahoma Resource Center said Peck had assured him that he "would not be presenting anything" regarding its closure at the meeting.
 
Surprise!
 
Peck told the newspaper he didn't try to mislead the SORC Parent Guardian Association and hadn't planned to make the presentation.
 
"I did not know I was going to say anything about my idea until the moment came," Peck said.
 
Peck and Commissioner Brad Yarbrough, who was still commission chairman in June, claim the state Open Meeting Act wasn't violated because no action was taken.
 
WRONG!
 
The purpose of the Open Meeting Act is "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems." (OKLA. STAT. tit. 25, § 302)
 
As such, the statute requires agendas to include "the subject matter or matters to be considered." (OKLA. STAT. tit. 25, § 303)
 
The state Supreme Court has said agendas must "be worded in plain language, directly stating the purpose of the meeting . . . [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence." (Andrews v. Indep. Sch. Dist. No. 29 of Cleveland County, 1987 OK 40, ¶ 7)
 
"To require otherwise would defeat the purpose of the Act," the unanimous court said. (Id.)
 
And because the Open Meeting Act was "enacted for the public's benefit," the statute "is to be construed liberally in favor of the public," the court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7))
 
The state Court of Civil Appeals said the purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting." (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8)
 
Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. (Id. ¶ 10)
 
Or as a 1980 attorney general opinion said:

The Open Meeting Act must be given a construction, which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken. (1980 OK AG 215, ¶ 12)

And at an open government workshop nearly three years ago, public officials were cautioned not to use "cryptic" agenda language.
 
"Don’t try to hide items of business by putting it under 'report,'" warned Gay Tudor, who was then the chief of the Attorney General's General Counsel Section.
 
The Attorney General's Office prefers for such reports "to have bulleted points for items under the report," said Tudor.
 
Contrary to that advice, the June 12 agenda for the Oklahoma Commission for Human Services has seven items listing nothing more than "report."
 
The commission's agenda materially obscured the scope of matters that would be considered. It failed to give the public actual notice of what would be discussed. Members of the Parent Guardian Association were denied the opportunity to hear for themselves Peck's plan to close the center.
 
Aside from what the Open Meeting Act requires, vague agenda items are just not good government. As another author has noted, "A basic tenet of a healthy democracy is open dialogue and transparency."
 
But DHS commissioners seem hell bent on keeping Oklahomans in the dark.
 
After complaints last summer that the commissioners were violating the Open Meeting Act, Oklahoma County District Attorney David Prater warned them that there are no minimal violations.
 
"Oklahoma's laws on openness in government serve an important and noble purpose," Prater wrote. "Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."
 
Prater specifically warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."
 
Prater chose not to prosecute commissioners then for violating the Open Meeting Act.
 
What will he do now?
 

 
Joey Senat
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
 

DHS response to Prater denies Open Meeting Act violation, defends committee structure intended to avoid Open Meeting Act

The statewide commission overseeing the state Department of Human Services did not end its June meeting without publicly voting to adjourn, the agency's legal counsel said Friday in a four-page response to Oklahoma County District Attorney David Prater.

But "to avoid future misunderstandings, Commissioners will take their seats while casting these votes," Charles Waters wrote.

Waters defended the commission's committees, which the chairman recently admitted in sworn testimony are limited to four members to avoid the Open Meeting Act's requirements.

However, Waters did agree that the commission's agenda items should be more specific when major policy changes are contemplated.

In August, Prater asked the commission for a written reply explaining why not reconvening after executive sessions and committees meeting without public notices or agendas were not willful violations of the Open Meeting Act.

Oklahoma Watchdog obtained a copy of the DHS response though an Open Records Act request.

Oklahoma Watchdog Editor Peter J. Rudy took issue Tuesday with DHS Communications Coordinator Sheree Powell's statement that "a member of the public remained in the otherwise empty room after the June 14th executive session and mistakenly thought votes were not taken."

"I was that member of the public and want to state for the record that I know what I saw, and there was no mistaking it," wrote Rudy.

Could votes have been taken after coming out of executive session? It’s possible and, according to the public record, that’s what happened. However, the votes were NOT 'publicly cast and recorded' as required by the Oklahoma Open Meeting Act. A clerk going up to each member and asking them how they vote on something as everyone is packing up and leaving does not appear to me to meet the definition of 'publicly cast.' And since commissioners have changed the way they end their meetings, I believe it’s a tacit admission that the previous procedure was not the proper one.

Complaints by Rudy and DHS Commissioner Steven Dow prompted Prater's investigation.

In the response to Prater, Waters said, "We do not believe there have been any violations of the Open Meeting Act and certainly no blatant disregard of law."

Waters said the committees don't violate the Open Meeting Act because they "have no final decision making authority; do not eliminate matters from future consideration by the Commission but simply obtain information and make recommendations to the Commission without exercising actual or de facto decision making."

The Oklahoman reported Sunday that in a deposition for a class-action lawsuit, Commission Chairman Richard L. DeVaughn said sidestepping the Open Meeting Act wasn't the only reason but it was "a good reason" for limiting the membership of committees.

(For a detailed explanation of how public bodies try to exploit a loophole in the Open Meeting Act, read how the OU Regents use a strict compliance with the letter of the statute to defeat its purpose.)

Waters' explanation ignores statutory language -- added in 1977 -- that includes "all committees or subcommittees of any public body" in the definition of public body. (OKLA. STAT. tit. 25, § 304(1))

And, of course, nothing in the statute prohibits the commissioners on these committees from following the Open Meeting Act by posting notices and agendas. They don't because they don't want the public to know what they're doing.

But that attitude might be on the way out. Gov. Mary Fallin last week replaced DeVaughn as chairman when she named two new members to the commission.

DeVaughn, an Enid dentist, was appointed chairman by then-Gov. Brad Henry in December 2004. His nine-year term on the commission ends in August.

One complaint by Dow was that when the commission approved the DHS budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility. No mention of the major policy change was made on the meeting agenda.

DeVaughn told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.

Prater has done just that, warning the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."

Waters agreed that the commission's June 14 agenda "could easily have been more specific especially when major policy actions are contemplated."

Dow had also complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."

Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.

However, Waters said the commission secretary has never polled commissioners "by telephone or other means to obtain a vote."

As Rudy noted Tuesday, now it's up to Prater to decide if the DHS "explanation is sufficient or if any charges will be filed in the case."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Oklahoma Watchdog: DHS legal staff to respond to DA’s request for explanation regarding Open Meeting Act violations

State Department of Human Services legal staff, not the commission overseeing DHS, will respond to the Oklahoma County district attorney's request a week earlier for a written explanation for why two issues "should not be viewed as willful violations of the Oklahoma Open Meeting Act," Oklahoma Watchdog reported Friday.

District Attorney David Prater said the commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act."

Prater's request for more information was directed to Commission Chairman Richard L. DeVaughn. Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."

The Oklahoma Commission for Human Services certainly seems to have violated the Open Meeting Act in some instances. For more explanation, read "DHS commission falls short of Open Meeting Act requirements, DA says."


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

DHS commission falls short of Open Meeting Act requirements, DA says

The statewide commission overseeing the Oklahoma Department of Human Services may have violated the Open Meeting Act, Oklahoma County's district attorney said Friday.

The commission's "actions of not reconvening after executive session and of possibly utilizing a committee with de facto decision-making authority may potentially constitute willful violations of the Act," said David Prater in a five-page letter to Commission Chairman Richard L. DeVaughn.

Prater asked DeVaughn for a "written reply to provide any needed explanation or clarification of the ... issues and to show why these two issues should not be viewed as willful violations of the Oklahoma Open Meeting Act."

Prater told the Tulsa World, "It's giving them a chance to defend their position, giving them some due process."

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in the county jail and a fine of up to $500. (OKLA. STAT. tit. 25, § 314)

The state Supreme Court has said that for the purposes of the Open Meeting Act:

Willfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act. (Rogers v. Excise Bd. of Greer County, 1984 OK 95,¶ 14)

DeVaughn told the Tulsa World, "I’m very, very confident that we have never violated the Open Meetings Act in any form."

DeVaughn, a commissioner since 2004, better read the Open Meeting Act again because they certainly have violated it.

At their June meeting, members of the Oklahoma Commission for Human Services just packed up their things after an executive session and left without a public vote to adjourn, Oklahoma Watchdog Editor Peter J. Rudy reported at the time.

Rudy and Commissioner Steven Dow complained to Prater about the commission's practice to "never officially return from executive session and publicly vote in open meeting about the matters discussed in executive session."

The Open Meeting Act prohibits the commission from voting in executive session. The statute also requires that all votes be publicly cast.

Dow complained "there is also no official adjournment of any meeting of the Commission when returned to open session after having conducted an executive session."

Dow said members have sometimes "simply left the meeting after executive session" and the clerk/secretary telephoned them to get their vote on adjournment.

Commission records showed Commissioner George Young Sr. voting to return from an executive session and to adjourn the meeting June 14 even though Young wasn't present for most of the executive session or for the adjournment, the Tulsa World later reported.

Prater said the commission clearly "has not properly come back into open session after having convened and gone into executive session."

He said telephoning commissioners for their votes on executive sessions and on adjournment "falls short of what is required under the Act."

"The practice ... is careless at best and falls short of what the public has a right to expect from its public servants," Prater said. "This office condemns any action, purposeful or unintentional, which has the intent or effect of circumventing the Open Meeting Act in regard to executive session matters."

Prater rejected the notion that not publicly voting to adjourn would be a "de minimis violation."

"I would submit there are no de minimis violations of the Open Meeting Act," Prater wrote. "Oklahoma's laws on openness in government serve an important and noble purpose. Those of us privileged enough to serve the public and who are thereby bound by those laws must demonstrate through our actions and attitudes the utmost respect for those laws and the principles they serve."

Prater commended the commission for properly reconvening in open session to adjourn at its July 26 meeting.

But Prater told the Tulsa World he is looking "real hard" at whether the commission purposefully places no more than four of its nine members on its Budget Committee in an attempt to avoid the requirements of the Open Meeting Act. That loophole only applies, however, if the committee has no actual or de facto decision-making power.

"Part of the problem looking into these committees is there are no minutes and nothing is recorded so it is hard to determine what has been considered," Prater told the newspaper.

(For a detailed explanation of how public bodies try to exploit the loophole, read how the OU Regents use a strict compliance with the letter of the Open Meeting Act to defeat its purpose.)

Dow has said the Budget Committee "has de facto decision-making authority."

"They did not decide to approve the overall budget, but it did decide the details of that budget," he said.

Dow also had complained that when the commission approved the Department of Human Services budget in June, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.

An important decision. But no mention of it was made on the meeting agenda.

Prater said the omission was not a "willful violation of the law that would render null and void the action taken by the Commission."

An agenda item concerning a $500 million budget "could never spell out each and every detail," wrote Prater.

"However, the core purposes of the Open Meetings Act dictate that the public be able to ascertain what actions are to be considered or taken by its governing bodies, and my concern is that with very little effort on the part of the Commission, this particular agenda item could have been made to far better advance the purposes of openness in government," Prater wrote.

Prater warned the commission not to use "future agenda items which are phrased very vaguely and have imbedded within them massive policy changes," saying they "may indeed constitute violations in light of the expressions of concern contained within this letter."

In June, DeVaughn had told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.

Seems as though Prater has done just that.

(For more news coverage of Prater's letter, read DHS commission may have violated openness laws, DA says by Bryan Dean of The Oklahoman.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Votes recorded for DHS commissioner who wasn't present; DA investigation into apparent Open Meeting Act violations by commission likely finished in about two weeks

DHS Commissioner George Young Sr. voted to return from an executive session and to adjourn the meeting June 14, according to commission records.

But Young wasn't present for most of the executive session or for the adjournment, the Tulsa World reported today.

The statewide commission overseeing the Oklahoma Department of Human Services is being investigated for apparent Open Meeting Act violations at the meeting.

For example, members of the Oklahoma Commission for Human Services left after the closed executive session on June 14 without a public vote to adjourn.

Oklahoma Watchdog Editor Peter J. Rudy provided information about that apparent violation of the Open Meeting Act to the Oklahoma County district attorney.

Assistant District Attorney Scott Roland says his investigation will likely be finished in about two weeks, the Tulsa World reported today.

Commissioner Steven Dow, who has complained publicly about the lack of openness by the public body, has said a staff person asked each member individually for a vote on whether to adjourn.

DHS spokeswoman Sheree Powell told the Tulsa World that the roll-call vote was taken "in a public area of the room."

That doesn't comply with the Open Meeting Act, which states, "In all meetings of public bodies, the vote of each member must be publicly cast and recorded." (OKLA. STAT. tit. 25, § 305)

Under the commission's procedure, a staff person could collect votes on any measure while members of the public body milled about in a public hallway or lobby.

That defeats the purpose of requiring a public roll-call vote. The public would have no idea who voted which way until the meeting minutes were available.

The commission's haphazard method also makes more likely the kind of mistake that Powell says occurred when votes were recorded for Young. She told the Tulsa World that the recorded votes were a "scrivener's error" and would be corrected in the minutes up for approval at the July 26 meeting.

Rowland's investigation should go beyond whether the commission cast public votes to return from the executive session and subsequently to adjourn.

When the commission approved the DHS budget on June 14, it also increased co-payments made by clients who receive child-care benefits and reduced the income eligibility.

But no mention of that important decision was made on the meeting agenda.

Chairman Richard L. DeVaughn later told the Tulsa World that the commission would add more detail to its agendas if told to by a court or state Attorney General Scott Pruitt.

If Pruitt won't, hopefully Oklahoma County District Attorney David Prater will.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice. The language used should be simple, direct and comprehensible to a person of ordinary education and intelligence," the Court of Civil Appeals has said. (Haworth v. Havens, 1981 OK CIV APP 56, ¶ 8) (emphasis added)

The purpose of the Open Meeting Act "to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting," the court said.

Any act or omission that "has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting" would be a "willful" violation of the Open Meeting Act, the court said. (Id. ¶ 8)

The commission's June 14 agenda failed to give the public actual notice and materially obscured the scope of matters commissioners would consider.

Rowland also should be investigating Dow's claim that the commission's Budget Committee made decisions when it met secretly.

The commission relies on loopholes in the Open Meeting Act to avoid having the Budget Committee meet publicly and post meeting notices and agendas. No more than four of the commission's nine members are on the Budget Committee. But that avoids the Open Meeting Act's requirements only if the committee has no actual or de facto decision-making power.

But Dow, who said he was barred from the Budget Committee's meetings, said the commmittee "has de facto decision-making authority."

"They did not decide to approve the overall budget, but it did decide the details of that budget," he told the Tulsa World.

Violating the Open Meeting Act is a misdemeanor punishable by up to one year in jail and a $500 fine.

Will DHS commissioners face charges, a stern finger-wagging, or be allowed to go merrily on their way? That will depend on what Rowland says he found and what Prater decides to do based on those findings.


Joey Senat, Ph.D.
OSU Associate Professor
School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Open government awards go to Tulsa World, OKC public information director; OKC attorney, Oklahoma County district attorney garner Black Hole Award

The Tulsa World and Kristy Yager of the city of Oklahoma City were named winners Saturday of FOI Oklahoma awards for their commitment to freedom of information and openness in government.

The organization’s Black Hole Award for thwarting the free flow of information went to Oklahoma County District Attorney David Prater and the Oklahoma City city attorney’s office.

The third-annual awards were presented during Oklahoma Sunshine `10 conference: Privacy, Politicians & the Public’s Need to Know. The conference was in conjunction with national Sunshine Week activities celebrating and promoting the public's right to know.

The World received the Ben Blackstock Award for its nearly decade-long effort to gain access to computerized records withheld by the Department of Public Safety. The award goes to a non-governmental person or organization.

The newspaper filed suit in 2001 after then-Commissioner Bob Ricks rejected almost an entire open records request for computerized and paper records on the Oklahoma Highway Patrol’s use of force, traffic stops and searches and agency procedures.

The World sought the records to review the agency’s treatment of minorities who were stopped and searched, among other issues.

After court rulings, the World resolved issues with the agency in 2008 and 2009. The DPS recently paid a substantial portion of the legal fees the World incurred.

"We commend the Tulsa World for being a leader in open records and open meetings issues in this state,’’ said Dick Pryor, president of FOI Oklahoma.

"The World has a strong and significant tradition of protecting the public’s right to know," said Pryor, deputy director and managing editor of OETA, the Oklahoma Network.

An honorable mention went to Chris Tharp, who hired an attorney to compel the Broken Arrow school district to release information contained in detailed legal bills. (Read related blog postings.)

An honorable mention also went to Carol Austin of Vinita who used the state’s Open Records Act to reveal information about Vinita city government. (Read related Tulsa World story.)

Yager won the Sunshine Award for consistently working to provide useful information to the public. The award is presented to a governmental organization or individual who has shown a commitment to freedom of information.

As public information director for Oklahoma City, Yager has worked with local media in redesigning the city's Web site to make it easier to find information.

Live streaming video is available of city council meetings and even some community meetings. Video of the council meetings are linked to the agenda. By clicking on an agenda item, the video goes straight to the discussion of that item.

A reporter who nominated Yager said she and her staff "seem to understand their role is to provide the public with honest and accurate information and let the chips fall where they may, rather than constantly controlling the message with an iron fist.’"

For the Black Hole Award, FOI Oklahoma cited the refusal of the city attorney and Prater to release employee birth dates even after an attorney general’s opinion said the information was presumed open.

Without a birth date, it is impossible to distinguish between people who might have common names.

Prater called a request for such information by The Oklahoman "clearly an unwarranted invasion of the personal privacy’" of county employees.

He refused to explain why releasing birth dates would be an invasion of privacy and did not address the public’s interest in checking names and birth dates of county employees against databases of criminal records, political contributions and other information the public might want to know about its employees.

Prater told a reporter that he was not concerned about any confusion his decision might cause. (Read related blog posting.)

The next week, Assistant City Attorney Richard Smith told the newspaper that disclosure of city employee birth dates would not "assist citizens in the exercise of" their inherent political power. He said the reporter would have to request the birth date for each employee individually and explain its "specific concern in relation to that employee." (Read related blog posting.)

Meanwhile, Tulsa Mayor Dewey Bartlett Jr. honored the attorney general opinion and ordered employee birth dates released with the city’s payroll data as it has done for several years.

FOI Oklahoma is a statewide organization that actively works to promote the right of access by the public.

Other coverage of the awards:

• Tulsa World receives nod for freedom fight


• Oklahoma group roasts local lawyers over records

Oklahoma City officials refuse to disclose DOBs of employees; newspaper criticizes DA for advice not to release county employees DOBs

Oklahoma City won't disclose the birth dates of its employees, saying that allowing the public to use the information to check criminal records, political contributions and other background information would not "assist citizens in the exercise of" their political power, The Oklahoman reported today.

Instead, Assistant City Attorney Richard Smith told the newspaper it must request the birth date for each employee individually and explain its "specific concern in relation to that employee."

Also today, the newspaper in an editorial criticized the decision last week by Oklahoma County District Attorney David Prater that disclosure of all county employee birth dates would constitute a clearly unwarranted invasion of the employees' privacy.

Prater gave no explanation for his decision in either a letter to the newspaper or later to reporter Bryan Dean.

"I'm not concerned about your confusion," he told Dean.

The Oklahoman on Tuesday took exception to Prater's comment.

"Really? The county’s top prosecutor should care a lot about transparency when it comes to open records issues," the newspaper said.

The editorial noted that state Attorney General Drew Edmondson has released the names and DOBs of his employees.

"If Prater can do so, then he should," the newspaper said. "Otherwise he’s flouting the law and setting a poor precedent for the many city and county officials who look to him for guidance.

This blog, too, criticized Prater's reasoning a week ago and pointed out that his letter was mute on the most-important point: Why the public's interest in learning about its employees was so outweighed by individual employee privacy that disclosure would constitute an unwarranted invasion of privacy.

Oklahoma City, apparently taking a cue from Prater, offered no explanation of how disclosure of the information would constitute an unwarranted invasion of privacy.

In an e-mail Dec. 23, Smith told the newspaper, "After much thought and careful consideration, the City must deny your request for all employees’ dates of births."

That refusal -- just like Prater's -- runs contrary to a recent state attorney general opinion.

Earlier this month, Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (2009 OK AG 33)

Officials may refuse to release the information only if they determine "the employee’s interest in nondisclosure is greater," he said. Disclosing the birth date would have to constitute an “unwarranted invasion of privacy.”

In short, the public interest is presumed to exist and is given greater weight than the employee's privacy.

But Oklahoma City has taken the opposite approach by presuming that disclosure is an unwarranted invasion of privacy and by requiring the requester to justify the public's interest. In this instance, Smith is saying no public interest exists.

Oklahoma City also has, in effect, instituted a blanket policy of nondisclosure, which Edmondson said governments are prohibited from doing. Officials must justify their refusal on a case-by-case basis, he said.

Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court or the Legislature.

In 1919, for example, the Oklahoma Supreme Court said, "It is the duty of public officers, such as county superintendents, when in doubt as to the construction of an act of the Legislature, to follow, and not disregard, the advice of the Attorney General...." (Rasure Co. Supt. v. Sparks, 1919 OK 231, ¶ 7).

See also Branch Trucking Co. v. Okla. Tax Comm'n, 1990 OK 41, ¶ 10 (“Since 1919, the Attorney General's opinions have been binding on state officials unless the opinion is inconsistent with a final determination of a court of competent jurisdiction.”) (citing Rasure);

State ex rel. York v. Turpen, 1984 OK 26, ¶ 5 (“While in many states such an Attorney General's opinion is merely advisory, in this state it has been held such an opinion is binding upon the state official affected by it and it is their duty to follow and not disregard those opinions. This duty continues until a judgment of a court of competent jurisdiction relieves the public official of the burden of compliance.” (citing Rasure); and

2006 OK AG 35, ¶ 29 (“The effect of an Attorney General's Opinion in Oklahoma is different than it would be in many other states. In most jurisdictions, opinions or advice of the attorney general is advisory only, i.e., non-binding on the officials to whom it is addressed. In such jurisdictions attorney general opinions have in no sense the effect of judicial utterances. This is in sharp contrast to the role of the Attorney General in Oklahoma, where the Attorney General's opinion is binding on state officials to whom it applies, except only to the matter of constitutionality of statutes.”) (citing State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 16).

Unfortunately, many local and state officials seem to pick and choose which attorney general opinions -- or which parts of opinions -- they're willing to follow and ignore those they don't like.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Okla. Co. DA: Disclosure of county employee DOBs would be clearly unwarranted invasion of privacy; Okla. AG releases employee birth dates

Oklahoma County District Attorney David Prater says disclosing the birth dates of all county employees would constitute a clearly unwarranted invasion of the employees' privacy, The Oklahoman reported today.

The newspaper requested the information so it could check the names of county employees against databases of criminal records, political contributions and federal bankruptcy filings.

Reporters recently discovered that an Oklahoma City employee had filed personal bankruptcy about a month before being placed on paid administrative leave because of an investigation into the misuse of public funds. Reporters were able to learn of the bankruptcy only after city officials disclosed the employee's date of birth.

In a formal opinion stemming from the city's initial refusal to disclose the birth date, state Attorney General Drew Edmondson said government employee birth dates are presumed open and public bodies may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

Edmondson said public bodies may withhold the information only after demonstrating that the employee’s privacy outweighs the public’s interest in disclosure. Such balancing must be done on a case-by-case basis, he said.

On Monday, Edmondson released the names and birth dates of his employees, the newspaper reported.

But Prater, in a letter to the newspaper, said he would not give "approval for the blanket release of the birth dates of county employees" and was advising Oklahoma County Clerk Carolynn Caudill not to release the information.

That's essentially a blanket denial of the information, which Edmondson said was prohibited under the state Open Records Act.

In the letter, Prater told the newspaper, "I find your request for the birth dates of county employees clearly an unwarranted invasion of privacy of Oklahoma County employees."

Prater gave no explanation for his decision in either the letter or later to reporter Bryan Dean.

"I'm not concerned about your confusion," he told Dean. "The letter speaks for itself."

The letter, though, is mute on the most-important point.

Prater provided no reasoning for why the public's interest in learning about its employees was so outweighed by individual employee privacy that disclosure would constitute an unwarranted invasion of privacy.

Taxpayers deserve more thoughtful, informative explanations from elected officials than the short-tempered one given by Prater.

All this, though, brings us full circle to the original issue: Are birth dates such truly private information that disclosure constitutes a clearly unwarranted invasion of privacy?

Freedom of information experts say the fear that disclosing DOBs in public records will cause identity theft is unjustified. “Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” summarized Dean in an article Aug. 31.

As Edmondson and this blog noted months ago, birth dates can be found in voter records and other public documents in Oklahoma. The same can’t be said for the Open Records Act-provided examples of an unwarranted invasion of privacy.

Under the statute, governments “may keep personnel records confidential … where disclosure would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications submitted by persons not hired by the public body, and transcripts from institutions of higher education maintained in the personnel files of certified public school employees.” (OKLA. STAT. tit. 51, § 24A.7(A)(2))

Employee evaluations and payroll deductions are not available in other public records. Birth dates are.

Employee evaluations and payroll deductions are documents. Birth dates aren't.

Meanwhile, the statute says the employment applications of workers hired by government are open to the public.

Courts outside Oklahoma generally have agreed that people do not have a reasonable expectation of privacy when the information is contained in statutorily mandated public documents directly related to births and deaths, marriages, divorces, arrests, land sales, or other matters of "public record."

A federal appellate court, for example, said a right of privacy did not protect the name, age, and date of birth of registered sex offenders because the information was "already fully available to the public."

The issue seems likely headed to court in Oklahoma. Expect an appeal regardless of which side wins at trial.

Until then, the decision is left in the hands of individual officials such Prater. Some will give credence to the public interest. Others won't.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism